Connecticut Advisory Opinions June 21, 1999: AGO 1999-008 (June 21, 1999)

AGO 1999-008.

Dear Mr. Johnston and Mr. Jaekle:

This is in response to your request for an opinion concerning your access, as the Auditors of Public Accounts, to certain documents of the Judicial Selection Commission (the "Commission") in connection with audits of the Commission pursuant to Conn. Gen. Stat. § 2-90. In particular, you ask whether, pursuant to subsection (g) of that statute, the Commission is obligated to provide you with documents concerning the evaluation of judicial candidates and incumbents that are considered confidential under Conn. Gen. Stat. § 51-44a (j).

The dispute between you and the Commission is based on your respective interpretations of your statutory authority and responsibilities. In your view, review of these documents, including minutes of Commission meetings, is necessary to permit you to fulfill your statutory responsibility of examining the Commission's "performance in order to determine effectiveness in achieving expressed legislative purposes." Conn. Gen. Stat. § 2-90 (c). The Commission, on the other hand, believes that Conn. Gen. Stat. § 51-44a (j) prohibits the disclosure of these records, even to the Auditors, and states that it "cannot operate without complete confidentiality . . . and with the assurances given to applicants and informers as to the confidential nature of the Commission." For the reasons that follow, we conclude that the Commission must make these records available to you for purposes of the audit, but we urge you to establish procedures jointly with the Commission to safeguard the interests in confidentiality that the Commission justifiably raises.

Resolution of this issue requires an examination of the relevant statutes governing both the Auditors' and the Commission's authority. Conn. Gen. Stat. § 2-90 governs the duties of the Auditors of Public Accounts. This statute requires the Auditors to conduct periodic audits of the "books and accounts of each officer, department, commission, board and court of the state government, all institutions supported by the state . . . ." Conn. Gen. Stat. § 2-90(a) and (c). Prior to 1975, these duties were limited to reviewing the financial accounts of agencies receiving state funds. In 1975, the legislature enacted two amendments to Conn. Gen. Stat. § 2-90 that substantially expanded the scope of the Auditors' reviews. First, in addition to financial reviews, the Auditors were given the authority to "examine the operations and performance of state agencies to determine their effectiveness in achieving their legislative purposes. . . ," and to report their findings and recommendations to the Governor and the legislature. P.A. 75-425, §10.1 At the same time, the Auditors were given the authority to "determine the scope and frequency of any audit they conduct." P.A. No. 75-245. Representative Vicino explained the reason for this change:

It changes the existing law by allowing the State Auditors to expand their audits. The frequency and type of audits. Their audits would also or could also go into administrative performance which they cannot do at this time.

H.R. Proc., May 6, 1975, p. 2365.

These amendments thus established the Auditors' power to inquire into the performance of audited agencies, in addition to reviewing their financial operations, in order to evaluate and report on their effectiveness in achieving their statutory purposes.

Audited agencies have always been required to make their "records and accounts available to [the auditors] or their authorized agents, upon demand." In 1983, apparently responding to a reluctance on the part of some agencies to make available to the Auditors records that were confidential under other provisions of the general statutes, the legislature again amended §2-90 to clarify that the Auditors must be given access to all agency records and accounts, even those that have been deemed confidential for other purposes by other sections of the general statutes. By Public Act No. 83-302, titled "An Act To Ensure the Availability of State Records for Auditing Purposes," §2-90 was amended to provide: "Each state agency shall keep its accounts in such form and by such methods as to exhibit the facts required by said auditors and, the provisions of any other general statute notwithstanding, shall make all records and accounts available to [the Auditors] or their agents, upon demand." P.A. No. 83-302 (Emphasis added.)2 By inserting the phrase "the provisions of any other general statute notwithstanding," the Legislature evinced its intent that the Auditor's disclosure provision take precedence over any confidentiality provision in an audited agency's authorizing statutes.

Along with this change, in order to allay the concerns of audited agencies and to ensure that confidential records were not disclosed by the Auditors, Public Act 83-302 also made the Auditors subject to the same requirements of confidentiality pertaining to confidential records as the agency that they are auditing, with the same penalties for breach. The relevant portion, now codified as subsection (h) of Conn. Gen. Stat. § 2-90, provides:

Where there are statutory requirements of confidentiality with regard to such records and accounts or examination of nongovernmental entities which are maintained by a state agency, such requirements of confidentiality and the penalties for the violations thereof shall apply to the auditors and to their authorized representatives in the same manner and to the same extent as such requirements of confidentiality and penalties apply to such agency.

Representative Frankel explained the reasons for these amendments:

The bill clarifies that the auditors of public accounts have authority to examine records of each budgeted agency, notwithstanding any provisions of the other general statutes. The auditors have found that on certain occasions when they go into a particular agency, there is a reluctance on the part of the agency to fully cooperate, particularly with records that they consider confidential. All this bill does is say that the auditors shall have access to these records and that the same statutes of confidentiality shall apply to them as to the individual agency.

H.R. Proc., May 10, 1983, p. 4015 (comments on P.A. 83-302) (emphasis added).3

Accordingly, it is apparent from the plain language of Conn. Gen. Stat. §§ 2-90(g) and (h) and the legislative history of these sections that the legislature intended to and did provide the Auditors full access to the records of all state agencies and commissions, even those designated as confidential by other provisions of the general statutes, for the dual purposes of ensuring the proper handling and expenditure of all state funds and of reviewing each agency's "performance to determine the effectiveness in achieving expressed legislative purposes."

The Commission does not contest that it is subject to audit by the State Auditors, or that it must make its financial records available to them for review. Rather, it claims that under Conn. Gen. Stat. § 51-44a (j), certain of its records pertaining to the evaluation of judicial candidates and incumbents are confidential and cannot be disclosed, even to the Auditors. Section 51-44a(j) provides:

Except as provided in subsections (e) and (m) of this section, the investigations, deliberations, files and records of the commission shall be confidential and not open to the public or subject to disclosure except that the criteria by which candidates or incumbent judges who seek reappointment to the same court or appointment to a different court are evaluated and the procedural rules adopted by the commission shall be public.

(Emphasis added.)

The Commission argues that numerous documents and statements of an intensely personal nature, such as medical records, financial statements, and candid evaluations, have been submitted by and about candidates and incumbents on the express assurance that these records would be kept confidential, and the requirement of disclosure of these records to the Auditors would severely undermine the Commission's duty to evaluate prospective jurists and recruit qualified individuals to the judiciary. Therefore, it maintains that, while it is fully prepared to make available all records concerning the Commission's expenditure of State funds and the appointment and qualifications of Commissioners, it believes that the confidentiality provisions of §51-44a (j) should override the authority of the Auditors to obtain these types of records. While we believe that the Commission's position is based on its sincere commitment to its statutory responsibilities and the oath taken by its members, we conclude that under the current state of the law, the records in question must be made available to the Auditors.

The Commission was established in 1986, following the adoption of a constitutional amendment requiring that judges of all courts, except those who are elected, be nominated by the Governor exclusively from a list of candidates submitted by the Commission. Conn. Const. amend. XXV. Pursuant to Conn. Gen. Stat. § 51-44a (e) and (f), the Commission is directed to "seek qualified candidates for consideration by the Governor for nomination as judges." The Commission is charged with establishing, by regulations, the criteria for evaluating the qualifications for judicial candidates and incumbent judges seeking reappointment or appointment to a different court. The Commission has done this in State Agency Regs. §§ 51-44a-19, 51-44a-20, and 51-44a-21, establishing 23 different criteria for each candidate for judicial appointment, and 31 additional criteria for each incumbent judge whose reappointment is being considered. Although, as the Commission has noted, Conn. Gen. Stat. § 51-44a (j) makes the Commission's records "confidential and not open to the public or subject to disclosure," there is nothing in this statute or any other that expressly precludes the Auditors from reviewing these records. The issue raised here, then, is whether the general confidentiality provision of §51-44a (j) supersedes the authority of the Auditors to review all records of audited state agencies, "the provisions of any other general statute notwithstanding."

In construing statutes, the "'fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Furthermore, [w]e presume that laws are enacted in view of existing relevant statutes . . . because the legislature is presumed to have created a consistent body of law.'" Shawmut Mortgage Co. v. Wheat, 245 Conn. 744, 748-9, 717 A.2d 664 (1998), quoting Conway v. Wilton, 238 Conn. 653, 663-64, 680 A.2d 242 (1996). In interpreting a statute, "a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language." Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 667, 103 A.2d 535 (1954). Exceptions to statutes are to be strictly construed. Hartford Hospital v. Department of Consumer Protection, 243 Conn. 709, 715 (1998).

This Office has twice had occasion to consider the scope of the Auditors' access to records that are statutorily confidential, and in both instances, we have concluded that the Auditors are entitled to examine the relevant records, subject to the same confidentiality obligations imposed on the audited agency. In the first opinion, this Office concluded that the State Properties Review Board was required to disclose to the Auditors information about state realty needs, despite a statute making disclosure of such information a misdemeanor. See Conn. Gen. Stat. §4-26i. In determining that disclosure to the Auditors was required, we noted:

It is important to note that the Auditors of Public Accounts are a legislative agency whose two State Auditors are appointed by the General Assembly to provide the independence and impartiality required for effective auditing. It is also relevant to note that sec. 4-26i was promulgated in the same Act, P.A. 75-425, as was the expansion of the responsibility and authority of the Auditors of Public Accounts to conduct not only fiscal and compliance audits but also performance or management type audits as well. Moreover, it is important to note that should the Auditors disclose any confidential information received by them from your minutes, they would be subject to the same penalty as you are under Sec. 4-26i.

1978 Conn. Op. Atty. Gen. (April 5, 1978) (emphasis added).

In the second opinion, this Office concluded that child abuse, education and drug and alcohol abuse records maintained by the Department of Children and Youth Services (now Department of Children and Families) must be disclosed to the Auditors, even though these records are considered confidential by both state and federal statutes. The opinion determined that Conn. Gen. Stat. §2-90, as amended by P.A. 83-302, "requires full disclosure of all records to state auditors," and that this statute "establishes a clear Connecticut state mandate to give auditors an unrestricted access to records."4 84 Conn. Op. Atty. Gen. (March 27, 1984).

These opinions buttress our conclusion that disclosure is required here. By providing a requirement that the Auditors observe the same requirements of condidentiality imposed on the audited agency itself, the legislature clearly contemplated that the Auditors would have access to otherwise confidential agency documents. Since there is nothing in section 51-44a(j), or any other section of the Commission's authorizing statutes, that expressly exempts its records from the disclosure provisions of section 2-90(g), we believe that this statute, and the policy for full disclosure underlying it, requires the Commission to provide you with access to its records for the purpose of audit.

The Legislature has made a clear policy choice - that all State agencies are subject to audit pursuant to Conn. Gen. Stat. § 2-90, and that audited agencies must make "all records and accounts," even otherwise confidential ones, available to the Auditors "upon demand." The Legislature considered and addressed the legitimate concerns of agencies, like the Commission, regarding disclosure of confidential records by subjecting the Auditors to the same confidentiality provisions and penalties as the agencies themselves. Absent specific statutory language exempting an agency's confidential records from disclosure to the Auditors, the agency is subject to the disclosure provisions of section 2-90(g).

While we acknowledge, and the Commission's authorizing statutes recognize, that confidentiality is necessary for its proper functioning, we do not believe that disclosure of the records to the Auditors under the provisions of Conn. Gen. Stat. §2-90 will undermine the Commission's functions because the Auditors are prohibited by law from disclosing any confidential records of the Commission to the same degree, and with the same penalties, as the Commission itself.

We note that you have stated that your "objective is not to attempt to evaluate the reasonableness of the Commission's decisions, but to verify that all of the required criteria have been considered." Letter of May 27, 1998, to James K. Robertson. To that end, you have agreed to accept the relevant documents with the candidates' names redacted, as well as the records of Commission votes with the members' names blacked out. You have also agreed to examine the records in the Commission's offices, without photocopying them. We urge you to meet with the Commission to work out mutually acceptable procedures for review of these records that will permit you to carry out your important work while still respecting the Commission's valid concerns.

We trust that this opinion answers your question.

Very truly yours,

RB/sqc

Footnotes:

1 Currently, the relevant language states: "Each such audit may include an examination of performance in order to determine effectiveness in achieving expressed legislative purposes." §2-90 (c). See P.A. 89-81.

2 This provision is now codified in subsection (g) of §2-90.

3 Senator O'Leary made a similar point, noting that "[t]he bill itself would clarify that the auditors of public accounts have the authority to examine the records of each budgeted agency notwithstanding the provisions of any other general statute. The auditors further would be required to observe any existing confidentiality requirement and they would be subject to the same penalties for violating confidentiality that applied to the agencies to be audited." Sen. Proc., May 17, 1983, pp. 2907-08 (remarks of Sen. O'Leary).

4 As to the federal statutes, the opinion concluded that disclosure of the records to the Auditors was permitted under certain express exceptions to confidentiality contained in those statutes.